Personal representatives in South Carolina cannot recover damages for those last few seconds of life when their decedent knew for a fact that they would die. Last week, the South Carolina Court of Appeals rejected a Plaintiff’s ability to recover damages for “pre-impact fear.” See Rutland v. South Carolina Dep’t of Transp., No. 4721 (S.C. Aug. 4, 2010).

That case involved a wrongful death action brought by the personal representative of the estate of a passenger killed following a highway automobile accident during a heavy rain storm. The Plaintiff sued various defendants, but all but the Department of Transportation settled out before the trial. (It’s unclear from the facts of the opinion what the Plaintiff’s theory of recovery was against the State.). The jury awarded the Plaintiff $300,000, but the trial court granted the Department’s post trial motion for set-off and reduced the verdict to zero.

The Plaintiff appealed. In its opinion, the Court of Appeals addressed various appellate points, but it is the Plaintiff’s second appellate point that is of interest. The Plaintiff had argued that “pre-impact” fear was recoverable in a South Carolina survival action “when the decedent suffered mental trauma before actual physical injury resulting in the decedent’s death.”

Citing some recent federal authority, and distinguishing an 80 year old case the Plaintiff had invoked in support of his theory, the Court of Appeals disagreed, noting as follows:

South Carolina does not recognize “pre-impact fear” as a compensable cause of action. See Hoskins v. King, 676 F. Supp. 2d 441, 451 (D.S.C. 2009) (concluding South Carolina law does not permit recovery for pre-impact fright). Also, we decline to extend the holding in [Spaugh v. Atlantic Coast Line Railroad. Co., 158 S.C. 25, 155 S.E. 145 (1930)] for the proposition that “pre-impact fear” is recoverable in this State.

In Hoskins, a case involving a cyclist killed after an automobile accident, Judge Joseph F. Anderson, Jr. had found that there was no support in South Carolina law for the recovery of such damages:

However, in addition to seeking the more established post-impact survival damages, Hoskins seeks damages for the split-second between when the rear tire of the bicycle touched the front bumper of the Pacifica and the impact of Thomas Hoskins on the windshield. However, this position does not find support under South Carolina law. Hoskins has cited many cases, from other jurisdictions which recognize recovery for pre-impact fright. In nearly all of these cases the victims knew they were going to die for a period of at least some seconds, not fractions of a second. Moreover, there was evidence in almost all of the cases that the victim saw their ending coming and there was no question that the victim consciously perceived the cause of his or her death-such as a car crashing in to the back of a tractor trailer, an imminent plane crash, or a pedestrian trapped on roadway.

In this case the King’s car closed from the rear at a high rate of speed, causing a tremendous impact-throwing Thomas Hoskins seventy-five feet in the air-and instantly killing him. A survival claim requires that the deceased consciously endure pain and suffering. Due to the severity of the impact, the court finds that the evidence does not demonstrate that the decedent had time to consciously perceive the means of his death, much less consciously suffer pain.

Further, the Court of Appeals had distinguished Hough as a case involving “a woman who became physically ill after experiencing a nervous breakdown when she was stranded by a train company” and that in that case the South Carolina Supreme Court had determined that there was sufficient evidence to conclude that the plaintiff had actually suffered “bodily injury.”

Important to the Court’s analysis was the National Highway Traffic Safety Administration’s withdrawal of a proposed rulemaking. The NHTSA contemplated authoring rules in the early 1990s requiring laminated glass to be used for side windows in vehicles. After studying the matter, the NHTSA withdrew its advanced notice of proposed rulemaking, and cited its study that the use of laminated glass increased the chances of injury to restrained occupants. See Notice of Withdrawal, 67 Fed. Reg. 41,365. The Court then examined three recent opinions from the Fifth Circuit, the West Virginia Supreme court, and the Tennessee Court of Appeals examining the potential preemption of Regulation 205. The state court opinions were driven by Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861 (2000), which found that Regulation 208 had preemptive effect. Following the state court decisions, it seems that the NHTSA’s withdrawal was the crucial factor:

Because the federal government authorized that choice, Regulation 205 must preempt a state claim. Note, however, that the Court footnoted the Foreword to ANS Z26, which does not support a finding of preemption, but the Foreword “is not part of” ANS Z26.

The Fifth Circuit decision in O’Hara v. General Motors Corp., 508 F.3d 753 (2007) went the other way. O’Hara reasoned that the NHTSA’s notice of withdrawal did not operate as a rejection of laminate glass in side windows. Moreover, the language of Regulation 208 “strongly supports the conclusion that it expresses a federal policy,” while Regulation 205 did not. Therefore, Regulation 205 was best understood as a minimum safety standard, leaving states free to regulate via tort.

The South Carolina Supreme Court footnoted multiple cases in which courts have dealt with the preemptive effect of Regulation 205. Although it seems both sides have valid arguments, there is the underlying current of rewarding risky behavior in not finding preemption. That is, laminate glass can protect unrestrained occupants from being ejected from a vehicle. Does a court really want to reward a risk-taking plaintiff by denying a defendant the defense of preemption. O’Hara involved the claims of a minor, so perhaps she was a more sympathetic plaintiff. At any rate, be aware of the split of authority, and look for the United States Supreme Court to take a Regulation 205 case on certiorari.

To foresee or not to foresee, that is the question. Well, at least its the question when you are arguing for summary judgment on the basis of the plaintiff’s failure to produce evidence on the issue of proximate cause. In a recent unpublished decision by the United States Court of Appeals for the Fourth Circuit, the court reviewed the seemingly symbiotic relationship between the proximate cause element in a negligence action and the requirement that the injury be a foreseeable consequence from an act or an omission. Graham v. Progress Energy, Inc., No. 08-1906 (4th Cir. June 25, 2010) (unpublished) [PDF].

In Graham, the court was reviewing the district court’s grant of summary judgment in favor of the defendants. The case arose out of an incident in which the plaintiffs’ home caught on fire. The fire started after the plaintiffs began using candles as a source of light. The reason that they had to use candles was that they failed to pay their electric bill and thus the power to their home was disconnected. On the date that the fire occurred, the plaintiffs had fallen asleep before extinguishing their candles. The plaintiffs sued Progress Energy on a negligence based claim.

The court framed the narrow issue as being “whether a reasonable jury could conclude that Progress’s alleged negligent conduct proximately caused the Grahams’ alleged harm.” The defendants did not dispute causation-in-fact. They admitted that it was foreseeable for the plaintiffs to use candles to illuminate their home. However, Progress Energy contended that the plaintiffs actions (i.e., falling asleep before extinguishing the candles) was an intervening cause that broke the chain of causation. Furthermore, the defendants claimed that while using candles to illuminate their home may have been foreseeable, …”going to sleep with the candles lit or otherwise failing to attend to the candle so as to prevent them from falling was certainly by no means so.”

The court opined that the defendants’ argument “misconstrues the relevant inquiry because South Carolina law does not require that particular events be foreseeable.” The court went on to reason that only the general harm and general intervening cause need to have been foreseeable. The court found that since candle use was foreseeable, a reasonable jury could have concluded that some amount of candle misuse was also foreseeable. Finally, the court pointed to evidence within the record that supported the conclusion that the plaintiffs’ alleged harm was also foreseeable. As such, the court reversed the grant of summary judgment.

The court’s analysis, albeit sound, leaves the ordinary practitioner wondering what is the true meaning of an intervening cause. The answer is found in the procedural posture of this case – this appeal involved the review of a summary judgment order. Perhaps on remand, the once (and future?) fixture of the American judicial system will resolve this issue. Of course, I’m referring to the jury trial. For all of you out there, who like me, have only been practicing law within the last decade, allow me to explain. A jury is the fact finder that resolves factual disputes during a trial. We’ll discuss the term “trial” during our next lesson. As for our weary candle users, one thing we can be sure of– it is foreseeable that the jury will have to determine issues like comparative and contributory negligence before these plaintiffs will be permitted to recover for leaving the light, I mean candle, on.

I was on vacation last week. My family and I visited one of the most sacred of all family vacation spots – the beach! Our family goes to Litchfield Beach every year the week of Memorial Day. Litchfield is a quaint little beach, found just north of Pawleys Island and just south of Murrells Inlet, the seafood capital of South Carolina. As I sat there during my vacation at the beach, I couldn’t help but think of all of the products liability cases waiting to happen.

Last week, the South Carolina Supreme Court indicated that it would no longer tolerate impermissible fishing expeditions during the discovery process. In so doing, the court took the extraordinary measure of granting a writ of certiorari to review an administrative law court’s discovery orders and then vacating those orders and remanding the case back to that court. See Oncology & Hematology Assocs. of S.C., LLC v. South Carolina Dep’t of Health & Envtl. Control, — S.E.2d —-, No. 26814., 2010 WL 1756850 (S.C. May 3, 2010). The court described the case as between two “fiercely competitive healthcare providers” involved in a dispute over the “vying for cancer patients in Greer, South Carolina.” The specific facts of the dispute are irrelevant to the cautionary point offered by the case: be careful what you ask for in discovery.

This is a case with which litigators should be familiar. At issue in the opinion were the discovery requests sent by Spartanburg Regional Healthcare System (“SRHS”) to Oncology and Hematology Associates of South Carolina, d/b/a Cancer Centers of the Carolinas (“CCC”), several of which the court quoted in their entirety in the opinion. The central issue in the case, as noted by the Court, was “whether the 2004-2005 South Carolina Health Plan standards applied to the relocation of SRHS’s linear accelerator.” That was a relatively narrow issue, though the discovery requests at issue were quite broad. Indeed, the specific proceeding arose after SRHS submitted a Certificate of Need application to the South Carolina Department of Health and Environmental Control to relocate the linear accelerator from one facility to another. That request was granted by the governmental authorities, but CCC sought a contested case hearing before an administrative judge on the issue. Ultimately, the Court concluded that SRHS “took a shotgun approach and sought virtually all information concerning every facet of CCC’s operation.”

Nothing good can follow that statement if it was your discovery at issue.

Pausing to quote the rules, and expound upon its scope, the Court observed:

We are keenly aware that the scope of discovery is broad. Rule 26(b)(1), SCRCP, provides:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . [and] [i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Yet, there are limits, which we see trial courts generally unwilling to recognize and enforce. SRHS’s discovery requests of CCC and its business partners are abusive and beyond the pale.

Our willingness to review a discovery order by way of a writ of certiorari will be as rare as the proverbial “hen’s tooth.” We have no desire to micromanage discovery orders. It is our hope that in resolving this matter, we will speak to trial courts generally. While discovery serves as an important tool in the truth-seeking function of our legal system, we are concerned that “discovery practice” has become a cottage industry and the merits of a claim are being relegated to a secondary status.

In finding that SRHS had abused the discovery rules, the Court further noted:

SRHS’s discovery requests are not remotely relevant to a resolution of the issue concerning the relocation of the linear accelerator. A challenge to relocation of the linear accelerator does not entitle SRHS to the information it seeks from CCC and affiliated entities. SRHS abused the discovery process with its scorched-earth approach.

We decline to rewrite and narrowly tailor SRHS’s oppressive discovery requests so as to make them proper. That would reward improper conduct. Where, as here, a party abuses discovery, the proper remedy is to vacate the requests and require the party to start over. As a result, we vacate the five discovery orders before us.

Ouch.

If you file motions to compel in South Carolina, or elsewhere, you will likely see the case cited in any responses to your motions. (This opinion could be persuasive authority elsewhere, and in fact, the Court itself invoked a 2003 Texas Supreme Court opinion in support of its conclusion.). If you respond to many such motions, it’s time to update your form response.

In Tobaccoville USA, Inc., v. McMaster, No. 26799, 2010 WL 1439108 (S.C. April 12, 2010) the South Carolina Supreme Court heard a certified appeal in which the attorney general was in a discovery dispute with a tobacco company. The dispute stemmed from the attorney general’s assertion that various privileges applied to Tobaccoville’s request for documents. The actual documents themselves were not identified in the opinion. However, based upon the references to the Master Settlement Agreement (MSA), one can reasonably conclude that Tobaccoville was seeking disclosure of documents relating to either the MSA itself or documents relating to the underlying litigation that was resolved by the MSA. In 1998, South Carolina, like many other states, entered into the MSA with the tobacco companies to settle litigation brought by the states to recover health care expenses that were allegedly related to tobacco use.

The supreme court remanded the case to the administrative law court for a determination of whether the alleged privileged documents are indeed confidential communications pertaining to the underlying litigation. The court also relied upon a Southern District of New York case for the proposition that the similar documents between an attorney general and the NAAG were protected by the attorney-client privilege. See Grand River Enterprise Six Nations, Ltd. v. Pryor, No. 02 Civ. 5069(JFK)(DFE), 2008 WL 1826490 (Apr. 18, 2008 S.D.N.Y.). Coincidentally, or maybe not so coincidentally, Grand River is the same manufacturer of cigarettes at issue in Tobaccoville USA, Inc. v. McMaster. It appears that the administrative law judge will now have to perform an in camera inspection of the documents to determine whether the attorney-client privilege actually applies to the disputed documents.

On April 13, 2006, ReNu with MoistureLoc contact lens solution, manufactured by Bausch & Lomb in its Greenville, South Carolina facility, was voluntarily withdrawn from the market in the United States when an increased number of consumers who used MoistureLoc began to develop Fusarium keratitis. On May 11, 2006, Bausch & Lomb met with the Federal Drug Administration and announced that they decided to remove the product from the market worldwide.

In May 2009, Baush & Lomb moved to exclude the testimony of Plaintiffs’ expert, Dr. Elisabeth Cohen, with respect to non-Fusarium infections. As reported by the Drug and Device Law blog on August 27, 2009, Judge Norton, along with Judge Shirley Werner Kornreich of the Supreme Court of the State of New York, granted Baush & Lomb’s motion to exclude “Dr. Cohen’s general causation opinions relating to non-Fasarium infections.”

The Court concluded that since Plaintiffs’ general causation expert, Dr. Cohen, was excluded, Plaintiffs could not prove general causation, and thus, could not prove the essential causation element of any products liability action. Further, the Court disagreed with Plaintiffs’ assertion that they could prove causation through Physicians’ differential diagnoses. This is a “technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated.” Judge Norton stated that Plaintiffs could not rely on this technique to “end-run” the general causation requirement.

Since Judge Norton’s ruling on February 17, 2010, two individual non-Fusarium Plaintiffs have filed motions to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, Baush & Lomb has filed a response to one Plaintiff’s motion, and Baush & Lomb has filed a motion for summary judgement as to all other non-Fusarium Plaintiffs that were inadvertently not included in the February 2010 order. Therefore, be on the lookout for further rulings on the non-Fusarium Plaintiffs in addition to resolution of those claims by Fusarium